Law Exam 1

US court of appeals

12 judicial circuits to hear appealed cases from district courts

False Claims Act

1863. a more than 150 year old response to fraud against the government. Enacted during the Civil War when profiteers were selling rancid food rations and other bad items to the Union army. Plaintiffs who initiate cases under the FCA are called qui tam, and abbreviation of a Latin phrase meaning "who sues on behalf of the king as well as for himself." Whistleblowers receive percentage of amount recovered. Law has been amended several times, including 1986 when t was brought to light that up to 10 percent of the federal budget was being drained by fraud.

Sarbanes-Oxley

2002. Following corporate and accounting scandals (Enron, Arthur Anderson, etc.), Congress passed Sarbanes-Oxley Act (SOX). Under SOX, senior management of publicly traded companies must individually certify the accuracy of financial information, boards of directors have more oversight responsibilities, and internal and independent "audit committees" must be established. SOX protects whistleblowers (i.e., companies cannot retaliate). Under SOX, a public company must establish a process giving its employees the option to report internally, and in confidence, to its audit committee. Also covers subsidiaries, contractors, an agents of publicly traded companies.

Food Safety Modernization Act

2010. First major overhaul of the nation's food security system in 80 years, authorizes the FDA to require science-based safety controls of the food producers under its jurisdiction. Came after spate of tragedies in which hundreds of people were sickened and some died, after whistleblowers made explicit the connections between those tragedies and reckless corporate behavior. Includes protection for whistleblowers - employees are protected when they "reasonably believe" violates the law (even if they ultimately are mistaken). FDA's jurisdiction covers all except meat, poultry and eggs, which are managed by the Secretary of Agriculture.

Dodd-Frank

2010. Passed in response to the housing market and financial crisis of 2007-2008, Dodd-Frank rewards individuals who help the SEC uncover securities violations. Those who initiate reports to the SEC leading to recovery exceeding $1M receive a share of the amount recovered. While Dodd Frank defines whistleblowers as those reporting to the SEC, the section of the law protecting whistleblowers covers a broader range of conduct, including internal reporting.

Yates vs. State

Andrea Yates murders kids by drowning in bathtub. She pleads not guilty by reason of insanity. Her mom, along with (11 doctors who testified) agreed that she was in a catatonic state, unresponsive, extremely depressed and should not be left alone. One psychiatrist (Dr. Dietz) says she was psychotic, but knew what she was doing was wrong. He also testified that he was a consultant with Law & Order and referenced a tv episode about a depressed mother who drowned her children in a bathtub. Jury found her guilty. Later discovered this was not an episode, and Dr.Dietz lied. It was decided that his lie affected the jury and affected substantial rights of woman. Case to be retried.

virtue ethics

Aristotle. habits of good character.

Arizona v. Gant

Arizona Supreme Court - 2009. Mr. Gant was pulled over and arrested for driving with a suspended license and handcuffed in the back seat of the police car. After he was handcuffed, the police searched his car and found cocaine, and he was charged for drug possession as well. Grant's lawyer argues that because he was handcuffed and not an immediate threat, the cocaine found without a search warrant, cannot be used as evidence. Supreme court decides that "search incident to arrest may only include the arrestee's person and area within his immediate control, or if there is reasonable to be believe that the area contains evidence of the offense of arrest. The cocaine found in the car is outside of the scope of the search and there was no reason to believe the car contained evidence, therefore cannot be used as evidence because of protection from the fourth amendment.

equal protection of the law

Constitution prohibits states and federal gov from denying any person equal protection of law. (treating one person differently than another)

GINA

Genetic Information Nondiscrimination Act Employers can't discriminate in hiring or firing, or classification that would deprive the employee of opportunities based on genetic information Exceptions inadvertent requests health services offered by employer employee provides information voluntarily regarding a claim for family and medical leave genetic monitoring of effects of toxic substances in workplace if an employer possesses the information, it shall be treated as a confidential medical record

Garcetti case

Has to do with free speech rights: The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances. Involves the First Amendment free speech protections for government employees. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the legitimacy of a warrant. The Court ruled that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection. Ceballos then brought a section 1983 claim in the United States District Court for the Central District of California, asserting that his supervisors violated the First Amendment by retaliating against him for his memo. The Supreme Court reversed the Ninth Circuit, ruled that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties.

Pickering vs. Board of Education

In 1968 the Supreme Court reinterpreted the First Amendment of the US Constitution to give employees at least limited speech protections. Pickering - a public school teacher - was fired for publishing a letter in the local paper critical of the Board of Education's allocation of funds to its athletic program. Pickering sued and lost in the lower courts. On appeal, the court ruled in his favor. Pickering vs. Board of Education ruled that a public employee could not be punished for speaking out on matters of public concern unless the employer could demonstrate that the employee's statements caused substantial interference with the performance of his own duties or with the functioning of the workplace.

State of NY v. Walmart Stores, Inc.

In February 1993, Walmart discharged two of its employees for violating its "fraternization" policy, which prohibits a "dating relationship" between a married employee and another employee, other than his or her own spouse. In this action, NY seeks reinstatement of the two employees with back pay upon the ground that their discharge violated a NY Labor Law which forbids employer discrimination against employees because of their participation in "legal recreational activities" pursued outside of work hours. The court wrote that dating bears little resemblance to "recreational activities," defined as things like sports, hobbies, games, and reading. It claimed that the statute was clear and free from ambiguity. Personal relationships fall outside the scope of legislative intent, based on memoranda issued in connection with two similar but failed bills that sought to expand the definition of recreational activities. The legislature wants to limit the definition and the court followed suit.

deontology

Kant. categorical imperative. driven by moral action for universal principles (despite consequences)

Milton case

Milton employee of nonprofit scientific research organization (org with tax exempt status). He discovered the org was not reporting taxable income. Milton demoted as a result of whistleblowing. then terminated after Milton's attorney contacted the org about the demotion calling it 'unlawful retaliation.' while employees can be fired with or without cause, there is an exception: under the tort of "wrongful discharge" an employee can argue that the firing clearly conflicts with "public policy." Milton filed suit for wrongful discharge in the 4th Circuit Ct of Appeals Maryland recognized a 'narrow exception' to the general rule of at will employment, only in limited circumstances: 1) where an employee has been fired for refusing to violate the law 2) where an employee has been terminated for exercising a specific legal right or duty. Milton claims he was fired for fulfilling his fiduciary duet as a corporate officer to inform the Board of activities injurious to the corp's long-term interests. (He does not claim that he was asked to break the law.) MD law provides a wrongful discharge cause of action for employees who are terminated because they perform their "statutorilty proscribed duty;" but this is defined narrowly, and is not applicable to Milton. Milton was never responsible for filing taxes, and would thus not be liable, so his claim fails. Milton labored under no "specific legal duty" to report IITRI's tax fraud to the Board. Milton lost.

Podias vs. Mairs

NJ Superior Court 2007. Do passengers of Mairs have duty to at least call 911? Yes because they knew of the harm, and had relationship to driver (not innocent bystander), and may have helped created the situation (let him drive drunk).

Hallowich vs. Range Resources Corp

PA Court of Common Pleas--no precedent! Question: right to privacy under PA Constitution A family in Western PA sued a corporation that was fracking near their home. They settled the case and area newspapers sued to make the confidential settlement public. The corporations claimed they had a right to privacy under Pennsylvania's constitution because courts of the Commonwealth extrapolated the rights to privacy from sections 1 and 8. "The right of privacy is a well-settled part of the jurisprudential tradition" in PA. But the court claimed that right did not apply to corporations. "Such business entities cannot have been 'born equally free or independent' because they weren't born." The court believed that the language used in the PA constitution was very specific regarding corporations, and had the framers wanted to shield corporations they would have written language doing so. "It is highly improbably that Penn founded Pennsylvania with an eye toward securing liberty for business entities or to grant them a right to privacy."

Yania vs. Bigan

PA Supreme Court 1959. Court rules that Bigan had NO duty to rescue, because Yania knew of the dangers, was an adult and was able to make his own decisions.

Smyth vs. Pillsbury

PA district court. Question: Right to privacy under PA Constitution/Common Law Michael A. Smyth was a regional operations manager at the Pillsbury Company. Smyth had a company email account that he was able to access from work and home. Pillsbury, on multiple occasions, told its employees that all email communications were private, confidential, and that there was no danger of the messages being intercepted and used as grounds for discipline or termination. In October 1994, while at home, Smyth received emails from his supervisor and, thinking that his replies would not be intercepted or used against him, made threatening comments. Pillsbury intercepted the emails and, despite the previous assurances made to the employees, terminated him. Smyth brought a wrongful discharge suit against Pillsbury, claiming that his right to privacy had been violated when his emails were intercepted. The judge used a balancing test to weigh the employee's privacy interests against the employer's need to discover new information. Regardless of the fact that the company said they wouldn't use the email, there is no reasonable expectation of privacy here. Also, no personal information was required to be disclosed (e.g. urinalysis). Smythe voluntarily communicated unprofessional comments over email. Even if he had a reasonable expectation of privacy, Pillsbury's interception of the comments are not a substantial and highly offensive invasion of privacy. The company's interest in preventing this type of comments outweighs the employee's privacy interests.

federal government powers

Power to regulate commerce- "commerce clause"- Congress given power to regulate commerce with foreign nations, among the states and with the indian tribes. Today, this only applies to commerce that crosses state lines. Applies to all economic/commercial activity Financial powers- includes power to tax and to borrow, spend and coin money.States may impose additional tax, which must be imposed for public purpose, there must be apportionment and sufficient connection with the state.

City of Ontario, California vs. Quon

Question: Did search of text messages violate Fourth Amendment? The OPD began to consider whether the character limit it had contracted for was too low and it was forcing officers to pay for work-related communications, as had sometimes happened in the past. At Scharf's direction, Duke requested from Arch transcripts of text messages sent by Quon and the other officer. Many messages were personal and some were sexually explicit, sent by the married Quon to his girlfriend at work. In one month as few as 8% of Quon's texts had been work-related. A transcript from, which messages sent when Quon and the other officer were off-duty had been redacted, was sent to the OPD's internal affairs sergeant, and after an investigation Quon and the other officer were allegedly disciplined. The fourth amendment affirms the right of people to be secure in their belongings and not to face unreasonable searches and seizures. Individuals do not lose that right simply because they work for the government. The court established a two-step analysis: 1) some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable, so the court must consider the operational realities of the workplace to determine on a case-by-case basis whether an employee's fourth amendment rights are implicated. 2) where the employee has a legitimate privacy expectation, an employer's intrusion on that expectation should be judged by the standard of reasonableness. The court assumes Quon had a reasonable expectation of privacy so the review of the messages constitutes a search. The special needs of the workplace justify an exception to the ban on warrantless searches. These searches are reasonable if they are justified upon inception and if measures adopted are reasonably related to the objectives of the search and are not excessively intrusive. The search was justified at its inception because there were reasonable grounds for suspecting that the search was necessary for a non-investigatory work-related purpose. The city had a legitimate interest in ensuring that employees weren't paying for work-related expenses or that the city was not paying for personal communication. It was reasonable to review the transcripts because it was an efficient way to determine whether the communication was personal or professional. It was not overly intrusive because they only used two months of transcripts and redacted messages from out of work hours. A reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being used appropriately. Also, given the pagers' purpose, Quon should have assumed the city might review transcripts to see if they were effective in helping SWAT response. Because the search was motivated by a legitimate work purpose and because it was not excessive in scope, it was reasonable.

Pierce case

The Issue: Whether an employee at will has a cause of action against her employer to recover damages for the termination of her employment following her refusal to continue a project she viewed as medically unethical? -Dr. Pierce, medical doctor at Ortho Pharm. Co opposed the development of a new drug formula, loperamide, which contained saccharin, as there was a medical controversy over the safety of saccharin. Dr. Pierce opposed the work because of safety concerns, viewed project as medically unethical. Dr. Pierce was an employee-at will: no contract except a secrecy agreement; employment was not for a fixed term (employee at will). -She claimed damages for the termination of her employment: impossible behavior to follow because of: the hippocratic oath ie ethical standards by which she was governed as a physician and the regulatory schemes, both state and federal, statutory and case law, for the protection of the public in the field of health and human well-being Common law: in absence of employment contract employers or employees have been free to terminate employment relationship without cause (common law rule has been modified by the enactment of labor relations legislation) employees who are professional sows a special duty to abide not only by federal and state law, but also by recognized code of ethics of their profession. the duty may oblige them to decline to perform acts required by their employers (does not hold true for personal morals) "unless an employee at will identifies a specific expression of public policy, he may be discharged with or without cause"

right to privacy

There's no right to privacy in the Constitution, but the Supreme Court interpreted the 1st, 4th, 5th, and 14th amendments as creating privacy rights

qui tam and fraud in health care

This section summarizes some research re: motivations and experiences of health-care industry whistleblowers under the False Claims Act. Most whistleblowers 1) tried to fix the situation first, before reporting 2) the majority were advised to initiate the qui tam process (rather than aiming to do so) 3) majority described working with government to gather evidence as grueling 4) majority reported personal toll of the process was substantial.

Quill Corporation vs. North Dakota

US Supreme Court 1992. connection between the company and the taxing state. The due process clause "requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax" and that "income attributed to the state for tax purposes must be rationally related to values connected with the taxing state". The Commerce Clause gives the federal government power to regulate interstate commerce and prohibits certain state actions, such as applying duties, that interfere with trade among the states

National Federation of International Business vs. Sebelius

US Supreme Court 2012. The power to regulate assumes there is already something to be regulated. In this case, the mandate to maintain insurance, is not regulating an existing commercial activity, instead, it compels individuals to become active in commerce by purchasing the product. Therefore, the court reversed the decision and declared the individual mandate is unconstitutional under the commerce clause.

Connick vs. Myers

US Supreme Court, 1983. the Supreme Court clarified and reinterpreted Pickering. Before applying the Pickering test, the Court ruled that it would first have to determine whether a public employee's speech was related to matters of public concern, thus creating a new obstacle for plaintiffs.

Citizens United vs. Federal Election Commission

US Supreme Court, 2010. Judges rule in 5 vs 4. Vote that corporations/organizations do have free speech rights (under first amendment)

employment-at-will

a legal doctrine that gives employers broad discretion to fire employees "for a good reason, a bad reason, or no reason at all."

affirm

agree with lower court decision

arbitration

alternative dispute resolution, disinterested persons selected by the parties hear evidence and determine a resolution; much faster and cheaper than court

mediation

alternative dispute resolution, neutral person acts as a messenger between opposing sides of a dispute, carrying to each side the latest settlement offer. mediator has no authority to make a decision, but may make suggestions. benefit of keeping discussion moving.

1968 Federal Wiretap Law

amended by Electronic Communications Privacy Act 1986 it is illegal to intercept, disclose, or access messages without authorization there are exceptions: no protection for communications that are readily accessible to the general public does not apply to the extent that employees give consent to monitoring (if employees are told their communication is monitored) allows employers to listen in on communications made in the ordinary course of business

jurisdiction

authority of a court to hear a case

limited or special jurisdiction

authority to hear only particular cases (juvenile, probate, domestic relations, bankruptcy, tax)

Protection of the person

bill of rights protects for freedom of speech, jury trials, religion and association

equity

body of law that provides justice when the law does not offer adequate remedy or the application of the law would be terribly unfair. when money damages are not enough. ex. antiques, real estate

Constitutional Law

branch of law based on constitution of particular government (federal, state); combination of written document and practices and customs that develop over time

general jurisdiction

broad authority to hear general civil and criminal cases (includes civil disputes, breach of contract and personal injury law)

fourteenth amendment

citizenship rights and equal protection of the laws,

corporate social responsibility

claims to serve wider stakeholder interest, including employees, customers, local community, environment.

steps in a lawsuit

commencement of lawsuit- begins with filing complaint which describes wrongdoing service of process- defendant is served process (or writ, notice, summons) defendant's response to pleadings- defendant is required to respond (motion to dismiss, counterclaim or pleadings) discovery- each side names witness and question individuals (deposition); examine documents, etc. motion for summary judgement- designation of expert witness- someone with special expertise (economist, scientist)

uniform state laws

common laws across states to make multi-state business easier (ex. Uniform Commercial Code; Uniform Residential Landlord Tenant Act)

due process

constitutional limit on government, guarantee protection against the loss of property or rights without the chance to be heard. All citizens are given the same protections. Due process does not require a trial in every issue of rights. There are shortcuts to resolve some issues.

small claims court

county or civil level, informal, do not use lawyers as representation, faster and cheaper means to resolve dispute of small value.

original jurisdiction

courts that have the authority to hear the original proceedings in a case (trial court)

subject matter jurisdiction

covers types of cases each court has the authority to hear

types of privacy rights

created by the supreme court stops the govt from interfering in the choices you make about private family and sexual life prevents the govt from publicizing private information--health, etc. "reasonable expectation of privacy" of individuals and corporations

substantive law

creates, defines, and regulates rights and liabilities (ex. laws that prohibit computer theft)

US supreme court

decides which appealed cases it wants to hear (writ of certiorari)- also serves as trial court for cases involving ambassadors, public ministers, and when 2 states are involved.

civil law

defines rights of one person against another; remedies for the wronged individual ($)

criminal law

defines wrongs against society; fines and/or imprisonment

shared powers

delegated to national government, but also exercised by states (tax, regulation of waterways)

is electronic monitoring intrusion?

depends on: the obnoxiousness of the means to intrude and the reasons for intruding

executive orders

directly from President or other public officials

reverse

disagree with lower court decision

living view of constitution

document is merely statement of goals and objectives, intended to grow and change over time.

Ortega case

employee's desk was searched while on vacation because he was accused of harassing female colleagues the search didn't violate the 4th amendment because he had decreased legitimate privacy expectations and there was a special need on the employer's part to discover work related misconduct offices are frequently accessed by colleagues and supervisors for work related purposes

Business justification for electronic surveillance

enables supervisors to observe and improve employee performance measures and encourages efficiency enhances completeness and fairness of personnel evaluations uncovers employee disloyalty can flag racially or sexually harassing email messages

pre-emption

federal regulatory scheme is controlling (over state)

federal district courts

general trial courts of the federal system. original jurisdiction and hear both civil and criminal (where defendant is charged with violation of federal law); 94 districts total

Free Market Ethics

goal of business is to be profitable and improve value of shareholder investment

utilitarianism

greatest good for the greatest number

state supreme court

highest state courts (can be called supreme judicial, or court of appeals); has screening process to choose cases; decisions are final unless federal law or US Constitution is involved

statutory law

includes legislative acts (i.e. Securities Act of 1933, bankruptcy laws, traffic laws, zoning, etc.)

benefit corps

intended to make profit by conducting business in a socially and environmentally responsible way. Triple bottom line = profit, people, planet.

state appellate court

intermediate level courts that review appeals

treaties

laws made by the United States

right

legal capacity to require another person to perform or refrain from an act. Rights flow from the US Constitution, state constitutions, federal and state statutes, and local ordinances.

duty to rescue

may have one if 1) the person created the hazardous situation, 2) special relationship exists (i.e. police, parents, emergency workers, employers, spouse)

reversible error

mistake in applying the law or mistake in admitting evidence that affected the outcome of a case

right of privacy

not explicitly in constitution. Guaranteed by the 4th amendment; 1) gives right to be secure against unreasonable search and seizures by the government; also 2) protects individuals against intrusions by others (this part gives women right to abortion)

ethic of care

nurturing and reinforcing ties with other, caring for others (instinctively feminine)

duty

obligation of law imposed on a person to perform or refrain from performing an act.

Privileges and Immunities

person going into another state is entitled to engage in business to the same extent as that states citizens

delegated powers

powers given exclusively to national government (declare war; establish currency)

case law

principles first expressed through court decisions. Important because they 1) clarify meaning of statutes, and creates precedent

fourth amendment

prohibits unreasonable searches and seizures and requires any warrant to be judicially sanctioned and supported by probable cause. only applies to government search.

first amendment

protection of freedom of speech, religion, press, assembly from infringement by government

fifth amendment

protects against a person being compelled to be a witness against himself or herself in a criminal case.

post-trial procedure

recovery of costs/attorney fees- prevailing party is awarded costs. In US- typical for each party to pay their own attorney execution of judgment- after all appeals, losing party must pay judgment; can involve garnishment

appeal

review of the trial and decision of lower court (does not hear witnesses or take testimony, simply review transcripts and evidence)

appellate jurisdiction

reviews the work of a lower court

private law

rules and regulations created by and between individuals and businesses through contractual relationships (landlords, homeowners associations)

administrative regulations

rules promulgated by state and federal agencies (SEC, National Labor Relations, wages/hours/overtime from Dept of Labor). These regulations generally have force of statutes.

trial

selecting jury- judge and lawyers determine if candidates are biased opening statement- attorney for each party frames their case presentation of evidence- can include documents, testimony, expert testimony, medical info, physical objects motion for a directed verdict- asks court to grant verdict closing arguments- summarize the case for the jury motion for mistrial- requires do-over with new jury jury instructions and verdict- given by court on how to deliberate motion for new trial; motion for judgment NOV- (non obstante verdicto) if verdict is clearly wrong

remand

send case for another trial or additional hearings

Corporate Governance

shareholders own the company; officers report to board; shareholders have very few rights

common law

stands as law in future cases that involve a particular problem that the court has already decided (also known as doctrine of stare decisis)

precedent

stands as law in future cases that involve a particular problem that the court has already decided (also known as doctrine of stare decisis)

General Trial Court

state court, general jurisdiction; both criminal and civil that don't meet federal district requirements

specialty courts

state courts, Juvenile, probate, family

federal supremacy

states cannot enact conflicting regulation against federal laws

procedural law

steps that must be followed in enforcing rights and liabilities (ex. prosecution steps taken against someone that steals computer)

bedrock view of constitution

strict constructionist, purpose of constitution is to state certain fundamental principles for all time

judicial interpretation

supreme court has made greatest changes through their interpretation. generally when a new situation arises that could not have been predicted in 1789.

employment-at-will exceptions

the common law has also evolved to create exceptions to the employment-at-will rule. In some states, courts have set limits by means of contract law. There are two main approaches. (Page 53) to imply a promise of "good faith and fair dealing" in the contract of employment to imply contractual terms (not to dismiss except for good cause, for instance, from an employer's handbook, policy statement, or behavior.

Government Accountability Project

the nation's leading whistleblower protection organization.

derivative lawsuit

when shareholders sue board or officers (very rare)

Ag Gag

whistleblowing suppression laws which criminalize not only undercover documentation of animal abuse, but also any recordings of public health violations occurring in agricultural facilities. Proponents of Ag Gag are primarily associated with large industrial agricultural facilities, who argue that the legislation protects the freedom to farm without interference, and that if taken out of context, routine and legal practices carried out on the modern farm will be subject to misinterpretation. Opponents to Ag Gag argue that undercover video brings necessary accountability to otherwise hidden wrongful practice. Civil rights advocates also argue that there are constitutional concerns with respect to the First Amendment free speech rights and the law's impact on investigative journalism.